BAKER v. BAKER

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Supreme Court, Appellate Division, Fourth Department, New York.

Noel BAKER, Plaintiff-Appellant, v. David BAKER, Defendant-Respondent.  (Appeal No. 1.)

Decided: September 29, 2006

PRESENT:  KEHOE, J.P., GORSKI, MARTOCHE, PINE, AND HAYES, JJ. Vella & Vella, Springville (Gerald J. Vella of Counsel), for Plaintiff-Appellant. Spadafora & Verrastro, LLP, Buffalo (John E. Spadafora of Counsel), for Defendant-Respondent.

Plaintiff appeals from a judgment that, inter alia, distributed the assets of the marriage.   We conclude that Supreme Court's distribution of the assets was reasonable and not an abuse of discretion (see McPheeters v. McPheeters, 284 A.D.2d 968, 726 N.Y.S.2d 530), including the amount and duration of maintenance (see Anderson v. Anderson, 286 A.D.2d 967, 969, 731 N.Y.S.2d 108), except insofar as the court ordered that defendant receive $15,000 from the net proceeds of the sale of the home in which plaintiff was living prior to an equal distribution of those net proceeds.   The court determined that the $15,000 represented defendant's separate contribution towards the purchase of the home and defendant was therefore entitled “to recoup [that] sum ․ as his separate property claim․”  We conclude that the subject $15,000 was transformed into marital property when defendant deposited that amount into a joint checking account and ultimately used that amount toward the purchase of the home (see Solomon v. Solomon, 307 A.D.2d 558, 763 N.Y.S.2d 141, lv. dismissed 1 N.Y.3d 546, 775 N.Y.S.2d 242, 807 N.E.2d 292;  Sherman v. Sherman, 304 A.D.2d 744, 758 N.Y.S.2d 667).   Thus, we modify the judgment by providing that the net proceeds from the sale of the home shall be distributed equally between the parties and otherwise affirm.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is modified on the law by providing that the net proceeds from the sale of the home shall be distributed equally between the parties and as modified the judgment is affirmed without costs.

MEMORANDUM:

All concur, HAYES, J., not participating.